Law of Evidence: Rangarajan

Law of Evidence
s. Rangarajan
D espite such rules o f evidence as were p revalent in Hindu^ and

M uslim I n d ia / in the absence o f any codified enactm ent on the subject,
the courts established by royal charter in th e presidency tow ns o f
Bombay, C alcutta and M adras began to follow' English rules o f evidence;
those rules were- contained in the com m on law and statu te law as
prevailed in England p rio r to 1726.® But outside the presidency
towns th ere were no fixed rules o f evidence ; th e position was really
anom alous because n eith er the English rules n o r the indigenous (H indu
o r M uslim ) rules applied.^
A ct X o f 1835 o f the G overnor G eneral in Council applied to all

courts in B ritish India® and dealt with evidence strictly so called. A
series o f Acts were passed by th e Indian legislature introducing some
reform s in the law o f evidence. Even Act I I of 1855 was n o t a com plete
body o f rules though it h ad m ade m any valuable provisions and had
m ade those rules applicable to the entire B ritish India. English rules
o f evidence were still n o t th e law in the m o fu ssil; b u t judges
and m agistrates in th e m ofussil were not debarred from following
them when they were seen to be th e m ost equitable. T here were
scattered rules o f evidence, however, based upon th e practice of the
M uslim courts which continued to govern the adm inistration o f justice
even after the beginning o f B ritish rule in India. Section 58 o f A ct 11
o f 1855 expressly laid down th a t nothing in th a t Act should be so con-
1. For a full discussion see Sir S. Varadachariar, Hindu Judicial System

(1946).
2. Sir Abdul Rahim, M uslim Jurisprudence ; Wahed Hussain, Administration o f
Justice during the M uslim Rule in India ; M. B. Ahmed, Administration o f
Justice in M edieval India.
3. For a discussion of the difficulties iu applying English rules of evideace see
Unide v. Pem m asam y 7 M. 1. A. 128 at page 137.
4. R . V . Khatrulla, 6 W. R. (Cr.) 21 and Ji. v. iJamawami, 6 Bombay H. C. R.
47. ,
5. Whitely Stokes, Anglo-Indian Code, 2 vols.
264 THE INDIAN LEGAL SYSTEM
strued as to render inadmissible in any cou rt any evidence w hich, b u t

for the passing o f th a t Act, w ould have been admissible in such courts.
B ut in practice, judges quoted English rules o f evidence.®
The reform s which had been advocated in England by Lords

D enm an and Brougham were carried o u t in 1855 ; the D enm an A ct o f
1843 h ad removed th e disability in th e m a tte r of witnesses being able to
give evidence on account o f ‘crime interest’ ; the Brougham A ct o f 1835
had m ade the husbands and wives of parties to the record co m p eten t
and compellable witnesses.
T here was piece-meal legislation subsequent to Act I I o f 1855 :

A ct X o f 1855 provided for attendance of witnesses (the Code o f Civil
Procedure o f 1859 contained provisions regarding witnesses ; the Code
o f Crim inal Procedure o f 1861 contained provisions in addition to those
regarding witnesses, about confessions, police diaries, exam ination o f
accused and civil surgeons, reports of chemical examiners, dying decla
rations, e tc .) ; A ct XV o f 1869 provided for the m anner o f obtaining th e
evidence o f prisoners.
In spite o f these provisions judges o f this country com m ented’ on

the im satisfactory state o f the law o f evidence here.
T he Indian Law Commissioners prepared a d raft bill in 1868 which

was circulated to th e provincial governm ents for their opinion. I t was felt
even then that certain parts o f the English law o f evidence w ere unsuit
able to this country. Laxity w hich led to rejection was considered a
greater evil, than even when it led to adm ission, by M aine (later Sir
H enry Sum ner M aine) when he introduced th e draft b i l l ; in o ther
w ords, he regarded capricious adm inistration o f th e law o f evidence as
an evil. This bill failed, even a fte r the first reading, because o f opposi
tion th at it was unsuitable to th e needs of the country ; Sir Jam es
6. For an illustration of this aspect see Ji. v. Gopa/, 3 I. L. R. Madras 271 per
Turner, C.J., at page 282, “Now if we examine the Indian Act 11 of 1855 it
will be seen to have had for its object the improvement of the Law of
Evidence, and there is not to be found throughout it the smallest exclusion o f
evidence which had, under English law, been upto that time receivable.
Improvement was in the direction, which had set in England, of admitting not
excluding” .
7. Gujju L a ll v. Fatteh Lall, 6 1. L. R. Calcutta 171 See the dissenting view of
the only Indian judge on the bench which decided this case; “That decisions
like the one under our consideration have been frequently admitted in our
Courts as evidence, is, I believe, a proposition beyond all dispute, and I do
not see any reason why we should depart from this practice merely because
it is opposed to the English law of evidence” (at page 179).
LAW OF EVIDENCE 265
Fitzjam es Stephen, to whose lot it fell, tw o years later, to introduce a

new bill, th o u g h t the bill was n o t sufficiently elem entary ; and th a t being
incom plete it did not dispense w ith reliance on English rules. Despite
opposition from officers o f the calibre an d experience o f Sir G eorge
C am pbell th a t system atic rules o f evidence w ould tend to be merely
theoretical, the second bill was finally passed into law as A ct I o f 1872
and cam e into effect on 15.3.1872.
T here were subsequent amendments.® C ertain p a rts o f the Act

were repealed and am ended by A ct X o f 1914.® One o f these am end
m ents (A ct 1 of 1938) deleted section 2 o f th e Evidence A ct’® b u t it is
considered^! th a t by this deletion no new principle o f evidence was
introduced. The background to th e deletion was as follows : The
Judicial C om m ittee o f the Privy C ouncil h ad ’^ insisted on the exclusion
of evidence not authorised by th e Act. M ahm ud, J., tried to introduce
a refiuem enti’ th a t while the principle o f exclusion was the safest guide,
“ yet it should n o t be applied to exclude m atters w hich m ay be essential
for th e ascertainm ent o f tru th ” : b u t this approach was disapproved
w ithout specifically referring to the dictum o f M ahm ud, J.) by the
Judicial Committee.^®" T he English law o f evidence, with certain
m odifications, was reproduced by the Act of 1892. T he English law
appeared to be ‘totally destitute o f arrangem ent’ ; it had been form ed
by degrees o u t o f various elements, and in p articu lar o u t o f the English
system o f pleading and the habitual practice o f the com m on law
courts. This feature o f th e English law was described in the following
m anner by the select com m ittee.
F o r instance, the rule th at evidence m ust be confined to points

in issue is founded on the system o f pleading. T he rule th a t
hearsay is n o evidence is p a rt o f th e practice o f the courts ; b u t
th e two sets o f rules ru n in to each other in such an irregular
8. Acts X V III of 1872, III o f 1887, H I o f 1899. X V III o f 1919, X X X I o f 1926,

X X XV o f 1934, I o f 1938, X L o f 1949 and III o f 1951.
9. F or a chronological list o f these Acts from 1841 to 1961 see appendix to
Volume IV o f W oodroffe and Am eer All, The Law o f Evidence (12th ed. 1968),
10. Y et t h e Supreme Court pointed out in iS / o fe o / i ’unyoA V . S'. 5 . Sins’ll, A . I. R .
1961 S. C. 461 that in case o f ambiguity or doubt the court caa with profit
lo o k to the com m on law for ascertaining the true m eaning o f the provisions o f
the Evidence Act.
11. George Rankin, Background to Indian Law p. 115; a\so see King v . King,
I.L .R . 1945 All. 620.
12. See Rani LakraJ Kaur v. Baboo M ahpal Singh, 1879 L. R . 7 I. A. 63.
13. R. V . Abdullah, 7 I. L. R ., A ll. 385 at 401 (1885).
13a. M aharaja Sir Chandi Nandy v. R. Thakur, 1941 I.L .R . I- A . 34.
266 th e In d ia n l e g a l s y s te m
way as to produce between them a result which no one can

possibly understand system atically, unless he is b o th acquainted
w ith the principles o f a system o f pleading which is being
rapidly abolished, and with the every day practice o f the
com m on law courts, which can be acquired and understood
only by those who habitually take p a rt in it. This knowledge,
m oreover m ust be qualified by a study o f text-books, which
are seldom systematically arranged.
There were two possible a p p ro ach es: one, on which th e A ct procee

ded, was th a t it was both possible and advisable positively to determ ine
w hat is evidence ; the second was, like the historical m ethod o f the
English law, to adopt the negative ap proach of declaring n o t w hat is,
but w hat is not, evidence. The Am erican experim ent o f defining hear
say (what is n o t admissible), and grafting num erous exceptions to it,
is a later approach. W ithout digressing into this aspect, it m ay be
noticed th a t th e Evidence Act, as were th e rules in England was geared
to trials, mainly with the aid o f jury. M aine said th at the English law
o f evidence would probably not have come into existence b u t for one
aspect o f the English judicial adm inistration—the system o f the judge o f
law being separate from th e finding of fault, o f the judge and the jury.^*
In this light w hat might be very useful, though only fairly reliable, has
been shut out in favour o f u tte r safety, in an endeavour to exclude w hat
may altogether vitiate the ju ry ’s verdict. T here are various other
criticisms o f the Act into which it is not now possible to enter.^®
The tw o necessary functions o f a co u rt o f justice are to ascertain

the existence or non-existence o f certain facts and then to apply the
substantive law to the ascertained facts and declare the rights or
liabilities o f parties in so fa r as they are affected by such facts. As the
select com m ittee o f the bill observed :
Every judicial proceeding w hatever has for its purpose the

ascertaining o f some right or liability. If the proceeding is
crim inal, the object is to ascertain the liability to punishm ent
o f the person accused; if the proceeding is civil, th e object is
to ascertain som e right o f property o r o f status or the right o f
one p a rty and the liability o f the other, to some form o f relief.
AH rights and liabilities are dependent u p o n and arise o u t of
14. Proceedings o f the Legislative Committee dated 12.12.1868.

15, For a. criticism o f the Act, see G. C. Whitworth, The Theory o f Relevancy for
the Purpose o f Judicial (Evidence, 3rd ed. 1891). Woodroffe and Amir Ali, The
Law o f Evidence (12th e d -1968), Ch. V, pp. 97-123.
LAW OF EVIDENCE 267
facts, and facts fall into tw o classes, those which can, and those
which can n o t, be perceived by the sense.
T he means b y w hich th e co u rt inform s itself o f th e existence of

these facts is called evidence, which expression is derived from the Latin
w ord ‘evidens’ o r ‘evidere’ m eaning ‘to show clearly’, ‘to m ake plainly
certain ” ‘to ascertain’, ‘to p ro v e’. A ccording to Taylor^® it includes all
legal means, exclusive o f argum ent, which te n d to prove o r disprove
any m atter of fact, th e tru th o f which is subm itted to judicial investiga
tion. As explained by Nokes^’ evidence m ay be considered as
facts themselves or as the m ethods used to bring them to the notice of
the judge.
T he law applied by courts to ascertained facts in order to fram e a

judgm ent was regarded by B entham as substantive law, as distinct from
those rules by which facts are ascertained — by questioning persons,
inspecting things —and those pertaining to the recording and enforcing
o f judgm ents. T he latter rules w ere term ed adjective law, which would
even take in rules o f procedure an d pleading.
I t goes w ithout saying th a t the best rules o f evidence will n o t ensure

correct results being reached, even as it is said th a t the best shoes in the
w orld will not m ake a m an walk, n o r will the best glasses m ake him
see, if he be wholly lam e or blind. The rules of evidence have th ere
fore to be such as do n o t cram p b u t assist in reaching natu ral powers
(natural sagacity and experience) in the m atter o f coming to correct
conclusions. C ollateral and irrelevant m atters are excluded in order to
shorten proceedings b u t yet perm itting concentration upon points of
essential im portance. Stephen said in his speech :
A law o f evidence properly constructed would be nothing

less th a n an application o f th e practical experience acquired in
courts o f law to th e problem o f inquiring into the tru th as to
controverted questions o f fact.
T he J yidence A ct governs the proceedings before court,s^^which

expression includes all judges and m agistrates, and a if persons except
a rb itra to rs, legally authorised to take evidence.^® “ F a c t” itself means
an d includes ( 1) any thing, state o f things, o r relation o f things capable
o f being perceived by th e senses; (2) any m ental condition o f which any
16. P. Taylor, A Treatise on the Law o f Evidence ( l u h ed. 1920).

17. G. D . N okes, Introduction to Evidence 3-4 (2nd ed.).
18. But it is n o t to be extended where the extension is not warranted —
Brajnandan Sinha v. Jyoti Narain, A -l.R . 1956 S.C. 66.
person is conscious. One fact is relevant to the other w hen it is connect

ed with the other in any o f the ways referred to in the A ct (chapter II,
sections 5-55) The expression “ facts in issue” means a n d includes any
fact from which either by itself or in connection w ith o th er facts, th e
existence, non-existence, n atu re or extent o f any right, liability o r dis
ability, asserted o r denied in any suit o r proceeding, necessarily follows.
“ Evidence” means and includes (1) all statem ents which the co u rt
perm its o r requires to be m ade before it by witnesses, in relation to
m atters o f fact under inquiry; and (2) all docum ents p roduced fo r the
inspection o f the court. A fact is proved when, after considering th e
m atters before it, the court either believes it to exist o r considers its
existence so probable th a t a prudent m an ought, u n d er the circum s
tances o f the p articular case, to act on th e supposition th a t it exists;
it is said to be disproved w hen a sim ilar belief is possible th a t it does
not exist or its non-existence is so probable. When a fact is neither
proved n o r disproved it is n o t said to be proved.
The scheme o f the Evidence Act is th a t no fact o th e r th a n those

having rational probative value shall be ad m itted in evidence even as all
facts having ratio n al probative value are adm issible in evidence unless
excluded by a positive rule o f p a ram o u n t im portance. B ut evidence
may be given only of the existence or non-existence o f every fact in issue
and o f such o th e r facts as are declared to be relevant by the A ct, b u t
o f no others. This is subject to the fu rth er lim itation th at a person
will not be entitled to give evidence of a fact which he is disentitled to
prove by any provision o f th e law fo r the tim e being in force relating
to civil procedure.^'' The rules of evidence pertaining to relevancy
broadly in co rp o rate w hat the judges in England regard as relevant in
any enquiry. But there is one im portant difference in this respect
between E ngland and India. T he limits of relevancy w ith w hich the
English judge is concerned are those determ ined by logic, th a t is to say,
w hether it w ould help decide the m a tte r in controversy; if this is so
nothing else would prohibit th e English judge from taking the same
into consideration subject to any rule affecting its adm issibility. B ut the
judge in India is concerned w ith the fu rth e r question, even where he
thinks the evidence is logically relevant, adm issible and helpful, w hether
the same is m ade expressly relevant by any provision o f the Evidence
Act, This departure from the English practice was probably considered
necessary, a century ago, when th e level o f judges and lawyers in the
country was considered to be not o f the requisite kind. It is often
I8a. Section 3.
19. Section 5.
LAW OF e v id e n c e 269
found difficult in practice to be able to bring in evidence, intrinsically

and logically relevant and helpful, und er any express provision o f th e
A ct m aking such evidence relevant.
W ith the above distinctive features in m ind an effort will be now

m ade to set o u t w hat has been expressly m ade relevant by th e provisions
o f th e Act.
Facts which, though n o t in issue, are so connected w ith the facts in

issue as to form p a rt o f th e same transaction, are relevant, w hether
they occurred a t the same tim e and place o r a t different tim es and
p l a c e s . T h i s corresponds to the English rule o f res gestae, which
expression has n o t even been em ployed in the A ct. Sir Jam es Stephen
defined a tran sactio n as “ a group o f facts so connected together as to
be referred to b y a single legal nam e, as a crime, a c o n tract, a w rong,
or any other subject o f enquiry which m ay be in isstje” ; then evidence
can be given o f any other p a rt o f the transaction. This is so on account
of the other p a rt of the transaction also being in issue, evidence o f
which would be perm issible under section 5, or because such other p a rt
becomes relevant under section 6. V arious tests have been suggested
to find o u t w hether a fact form s p art o f th e same transaction. Similarly,
facts which are the occasion, cause or eifect, im m ediate o r otherwise,
of relevant facts or facts in issue, or which constitute the state o f things
under which they happened or which afforded an opportunity fo r th eir
occurrence are relevant.®’^ Also relevant are facts necessary to explain
or introduce a fact in issue o r relevant fact, o r which support or rebut
an inference suggested by a fa c t in issue or relevant fact, o r which
establish the identity o f any thing o r person whose identity is relevant,
o r fix the time o r place a t which any fact in isssue o r relevant fact
happened or w hich show the relation of p arties by whom any such fact
was transacted, are relevant in so fa r as they are necessary fo r th at
purpose.®^
Facts not otherwise relevant would also becom e relevant (1) if they
are inconsistent w ith any fact in issue or relevant fact; and ( 2) if by
themselves or in connection w ith other facts they m ake the existence or
non-existence o f any fact in issue or relevant fact highly probable o r
improbable,^® This provision is in consonance with th e idea th at some
facts though logically relevant are n o t legally relevant. Instances o f such
20. Section 6.
21. Section 7.
22. Section 9.
23. Section 11.
270 the INDIAN LEGAL SYSTEM
exclusion would be those which fall under th e hearsay rule and the fu r
ther rule which requires th a t no transaction between th e tw o parties
ought to operate to the disadvantage o f a th ird party. U n d er the latte r
would fall (a) statem ents m ade behind the back of a person against
whom they are sought (o be used as evidence and (b) sim ilar unconnec
ted transactions as well as opinions o f th ird parties.
There is a special provision concerning motive, prep aratio n and

conduct, m otive being obviously different from intention. A ny fact is
relevant which shows or constitutes a m otive or prep aratio n fo r any
fact in issue o r relevant fact. C orrespondingly the conduct o f any p a rty
or o f any agent of any party to any suit or proceeding, in reference to
such suit or proceeding, or in reference to any fact in issue therein or rele
vant thereto, an d the conduct o f any person an offence against whom is
the subject of any proceeding, is relevant if such conduct influences o r is
influenced by any fact in issue or relevant fact, and w hether it was
previous or subsequent thereto. “ C onduct” does not include statem ents,
unless those statem ents accom pany and explain acts o th e r th an state
ments; but w hen the conduct of any person is relevant any statem ent
m ade to him or in his presence and hearing, which affects such conduct,
is r e l e v a n t . ' I f the person affected is not available as a witness, then
if his statem ent am ounts to a com plaint it w ould be relevant by itself.
I f it is a m ere statem ent it would not be relevant unless it falls u n d er
section 32(1) {infra). Even silence would be relevant if it operates as
consent in a situation where there is a duty to speak.-® Such statem ent
could also be in w riting and need not necessarily be oral.®®
Any com plaint is m ade relevant in the view th at no person is likely

to com plain unless there is some basis of tru th . There is a distinction
here between the English and the Indian law fo r under the form er only
com plaints with respect to sexual offences would be relevant.
Provision is made for letting in evidence o f facts showing the exis

tence o f any state o f mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will o r good-will tow ards any p a rtic u lar person,
o r showing the existence o f any state o f body or bodily feeling, when
the existence o f any such state o f m ind or body or bodily feeling is in
issue. But such facts are lim ited to those which show the state o f mind,
existing n o t generally but w ith reference to the p articular m atte r in
question. F o r instance, when th e question is w hether A fired a gun
24. Section 8.
25. Illustration (g) to settion 32.
26. Illustration (h) to section 32,
LAW OF EVIDENCE 271
a t B with intention to kill him or merely accidentally, evidence may

be given o f any sim ilar transactio n , e.g., th a t h e h a d sh o t a t B previously.
Though th e com m ission o f a previous offence by the accused is n o t
generally relevant the previous conviction becomes relevant w hen the
previous com m ission by th e accused o f an offence is itself a relevant
fact.®'' Sim ilarly in deciding w hether an act was intentional o r acciden
ta l o r done w ith a p articu lar knowledge o r in tention, the fact th a t
such act form ed p a rt o f a series o f sim ilar occurrences, in each o f
w hich the person doing th e act was concerned, is relevant.
Statem ents, w ritten or verbal, o f relevant facts m ade by a person

who is dead, a re themselves relevant in th e follow ing cases. W hen the
statem ent is m ade by a p erson as to the cause o f his d eath o r as to any
o f the circum stances o f the transaction w hich resu lted [in his death in
cases in which the cause o f th a t p erson’s death comes into question.
T he circum stances o f the transaction m ay n o t necessarily be confined to
those im mediately preceding th e death o f th a t person. T hey may, for
instance, take in even letters w ritten over a period o f a few m onths o r
years showing strained relationship between him and th e deceased per
son. The statem ent o f the deceased person m ade after the com m ission
o f the offence w ould be relevant in any proceeding, civil o r crim inal,
w here the cause o f death is to be decided.^® This rule is different from
th a t in England w here such statem ent is relevant only in crim inal cases.
W hile in E ngland there is a further qualification, nam ely, th a t a dying
declaration to be relevant m ust have been under expectation of death
there is no such lim itatio n in India. I t is confined to the cause o f the
d eath of th e person m aking it and n o t o f any one else. An interesting
illustration o f th is principle is R a tm Gond v. S ta te o f Bihar^° where in
a case o f m urder the statem ent of the victim ’s sister (who died subse
quently b u t before th e com m ittal proceedings) as a result of w hich the
victim ’s dead body was recovered was held not to fall under section
32(1) of th e Evidence Act. I f th e sister had lived and had deposed
before the co u rt the statem ent which she h a d m ade could be used to
corrob o rate her statem en t before the c o u r t . S i m i l a r l y , any statem ent
m ade by a deceased person which is n o t connected w ith th e cause o f
his death will n o t fall u n d er section 32(1). W here the dying declaration
concerning the cause o f death o r circum stances resulting in his death
was m ade by a person while he was in the h o sp ital after receipt o f two
27. Section 14.

28. Section 15.
29. Section 32 (1).
30. (1959) S.C .R . 1336.
31. Section 157-
gunshot wounds and he died 20 days after adm ission into the hospital,,
and the death was not connected with the injuries received during th e
occurrence, th e same was n o t held to fall under section 32(1).“^
A dying declaration has to be com plete; if it is incom plete it could

not be considered. It need n o t necessarily be recorded in the language
spoken by the deceased. In Bakshish Singh v. The State o f Punjab^^ th e
deceased spoke in Punjabi b u t the record was m ade in U rd u , the lang
uage o f the subordinate courts and th a t eroployed by th e police. T he
argum ent th at the same should n o t be tak en into consideration since it
was not recorded in the language spoken by the deceased was repelled
by the Suprem e Court.
I f the dying declaration is reliable th ere could be a conviction fo r

m urder even w ithout any corroboration.®^ O bservations to the co n tra
ry in M adhoprasad v. State o f th at it is not safe to convict on the
basis o f a dying declaration w ithout fu rth er corrob oration since it is n o t
made on o ath o r subject to cross-exam ination seem to be obiter.^^
N o t only are such statem ents falling u n d er section 32(1) o f th e A ct

admissible by way o f exception to the hearsay rule but even statem ents
m ade by one conspirator to an o th er are admissible on th e basis o f the
principle o f agency, when two or m ore persons agree to do or cause to
be done either an illegal act o r an act which is not illegal by illegal
m eans and reasonable grounds exist for believing th at th e accused had
entered into such a conspiracy ; b u t a statem ent made by one co-con
spirato r w ould be relevant against an o th er if it was m ade in, furtherance
of the conspiracy.^’ The lim its o f admissibility o f such evidence have
been pointed o u t in a num ber of decisions. T he Judicial C om m ittee o f the
Privy Council held in M irza A kbar v. The King Emperor^^ th a t evidence
of acts o f co-conspirators, outside the period o f the conspiracy as
m entioned in th e charge could n o t be received against th e conspirators
but the conduct in general o f each individual co-conspirator including
his acts, writings and statem ents would be evidence against himself.
T he scope o f section 10 was explained by the Supreme C o u rt in Sardar
32. M oti Singh v. S tate o fU .P ., A .I.R . 1964 S.C.

900-
33. (1958) S .C R . 409.
34. Knshal Rao v. State o f Bom bay, (1958) S.C .R . 552.
35. A. I. R. 1953 S. C. 420.
36. See Tapindar Singh v. State o f Punjab, A . I. R. 1970 S.
C. 1566.
37. Section 10.
38. (1940) 67 I. A . 336.
LAW OF EVIDENCE ^73
Sardul Singh Caveeshar v. S ta te o f Maharashtra^^ in the following

m anner :
( 1 ) there shall be prim a fa cie evidence affording a reasonable

ground fo r a court to believe th a t two o r m ore persons are
m em bers o f a conspiracy ;
( 2) when such evidence exists anything said, done or w ritten by
any one o f them in reference to the com m on in ten tio n will be
evidence against the o th e r ;
( 3) anything said, done or w ritten by him should have been said,

done o r w ritten by him after the in ten tio n was form ed by any
one o f them ;
(4) it would also be relevant for the said purpose against another
w ho entered th e conspiracy w hether it was said, done or
w ritten before he entered the conspiracy or after he left i t ;
and
( 5) it can only be used against a conspirator and n o t in his favour.
As a result o f this in terpretation, despite the earlier rulings under

section 10, the law in India seems to be wider than in England.
T he provisions concerning relevancy in tw o specific situations may

also be adverted to in this context. In suits in w hich dam ages are
claimed, any fact which will enable the court to determ ine the am ount
o f dam ages which ought to be aw arded is relevant.*" This special pro
vision has been m ade despite such evidence being perm issible even under
section 5. W hen th e question falls to be considered about the existence
o f any right o r custom the follow ing facts are relevant :
(a) any tran sactio n by w hich th e right o r custom in question was

created, claimed, modified, recognised, asserted o r denied, or
which was inconsistent with its existence ;
(b) p articu lar instances in which th e right o r custom was claimed,

recognised or exercised, or in which its exercise was disputed,
asserted o r d eparted from.^i
T he illustration to section 13 shows th a t deeds are transactions.

The w ord “ tran sactio n ” means th a t som ething has been concluded
betw een tw o or m ore persons.
39. (1964) 2 s. C. R . 378.

40. Section 12.
41. Section 13.
In this context we may also notice th e provisions concerning

previous judgm ents. The existence o f any judgm ent, o rd er o r decree,
which by law prevents any cou rt from taking cognizance o f a suit or
holding a trial, is a relevant fact when th e question is w hether the suit
could be taken cognizance of or the trial held.'*^ A decision o f a com
peten t court between the sam e parties or th e ir representatives is m ade
res judicata under section 11 o f th e Code o f Civil Procedure. A ju d g
m ent could operate as res judicata in certain situations even ap art from
w hat has been strictly laid down by section 11 o f the Code o f Civil
Procedure. A final judgm ent, order, or decree o f a com petent c o u rt in
exercise of probate, m atrim onial, adm iralty o r insolvency jurisdiction,
which confers upon or takes away from any person any legal character,
o r which declares any person to be entitled to any such character, o r to
be entitled to any specific thing, n o t as against any specified person b u t
absolutely, is relevant when the existence of any such legal character or
the title o f any such person to any such thing, is relevant. These
judgm ents are i/i retn and the judgm ent, o rd er or decree w ould be con
clusive p ro o f o f the legal character conferred o r taken away.^^ N o t ail
judgm ents— especially those relating to status, adoption and legitim acy—
are in rem ; judgm ents in rem are only those specifically enumerated.**
The operation o f such judgm ents, as conclusive proof, is confined to the
tim e a t which such legal character was confined or taken away or when
a person was entitled to such legal character or specified thing abso
lutely. Judgm ents may also be relevant if they relate to m atters o f
public n ature relevant to the enquiry, but with this difference th a t they
are n o t conclusive p ro o f of th a t which they state.*^ There is a specific
provision*® th a t judgm ents oth er than those m entioned in sections 40, 41
and 42, are irrelevant • but these judgm ents would be relevant i f the
existence o f such judgm ent is itself a fact in issue or m ade relevent by
some other provision by th e A ct. T he conclusion in th e judgm ent o r
the existence o f the judgm ent would be relevant if it com es under
any section of the Act relating to relevancy, under section 13, or
as motive under section 8.*'^ I f the judgm ent o f a civil court fails
under section 41 or section 42 it w ould be relevant in a crim inal
case also ; b u t if it does n o t fall u nder either o f those sections,
section 40 would n o t apply and would n o t, therefore, be relevant since
section 40 is founded upon section 1 1 o f th e Code of Civil Procedure
42. Section 40.

43. Section 41.
44. In section 41,
45. Section 42.
46. Section 43.
47. Gofini/ Narain Singh v. S h a m lal„{l93l) 58 I.A . 125,
LAW OF EVIDENCE 275
and section 403 o f th e Code o f C rim inal Procedure. T he judgm ent of a

civil co u rt is n o t m ade relevant, under eith er o f those sections, in a
crim inal court, b u t th e conclusion in a ju d g m ent would be relevant
under the second p a rt o f section 43. So also a ju d g m en t o f a criminal
co urt cannot com e u n d er sections 41 and 42 ; under section 40 a
judgm ent o f a crim inal court can only be relevant in a n o th e r court, b u t
n o t in a civil co u rt, though th e existence o f a judgm ent o f the criminal
co urt may becom e relevant under section 43. T here is a general
provision^® which enables any party to a suit o r o th e r proceeding
to show th a t any judgm ent which is relevant u n der sections 40 to 42,
and relied upon by the adverse p arty was n o t delivered by a co urt of
com petent jurisdiction or th a t it was obtained by fraud o r collusion.
O pinion of third parties
O pinions o f th ird parties have also been m ade relevant in certain

cases. When th e co u rt has to form an opinion upon a point o f foreign
law , o r of science o r a rt, o r as to identity o f handw riting or finger
im pressions, the opinions upon th a t point of persons specially skilled in
such foreign law, science o r art, o r in questions as to identity o f hand
w riting or finger impressions, are relevant f a c t s . T h i s provision is
characterised as one relating to testim ony o f persons called experts.
F acts not otherw ise relevant are relevant if they su p p o rt o r are incon
sistent with the opinions o f experts, when such opinions are relevant.™
W hen the court has to form an opinion as to the person by whom any
docum ent was w ritten o r signed, th e opinion o f any person acquainted
with th e handw riting o f the person by w hom it is supposed to be
w ritten or signed is a relevant fact. A person is said to be acquainted
with the handw riting o f a n o th e r when he has seen th a t person write,
o r w hen he has received docum ents p urporting to be w ritten by th at
person in answer to docum ents w ritten by him self or under his authority
and addressed to th a t person, or when, in th e ordinary course o f
business, docum ents p u rp o rtin g to be w ritten by th at person, have been
habitually subm itted to him.®’^ A court may n o t safely record a finding
about a person’s handw riting in a certain docum ent on th e basis o f
expert testim ony alone. It can itself com pare th e w riting in order to
appreciate the evidence produced before it in th a t record.^i" It is not
48- Section 44.

49. Section 45.
50. Section 46.
51. Section 47.
51a. Section 73.
essential either th a t the handw riting expert be exam ined to prove or

disprove the disputed w riting/^
W hen th e court has to form an opinion as to the existence o f any

general custom o r right, the opinions, as to the existence o f such custom
or right, o f persons who would be likely to know of its existence if it
existed, a re relevant.^® Section 13, as already noticed, shows w hat
kinds of facts could be relevant to prove the existence o f any right or
custom.^®“ In addition any statem ent th a t gives the opinion o f any such
person, as to Ihe existence o f any public right or custom o r m atter o f
public or general interest, o f the existence of which, if it existed, he
would have been likely to be aware, and when such statem ent was
m ade before any controversy as to such right, custom o r m a tter had
arisen, could be taken into account.
When th e co u rt has to form an opinion as to the usages and tenets

o f any body o f men or fam ily, the constitution and governm ent o f any
religious o r charitable foundation, or the m eaning of w ords or term s
used in p articu lar districts o r by p articu lar classes o f people, the
opinions o f persons having special means o f knowledge thereof, are
relevant facts.®* There is a special provision making the opinion
expressed by conduct, concerning relationship relevant when the court
has to form a n opinion as to the existence o f such relationship, o f any
person who as a m em ber o f th e fam ily o r otherwise, has special means
of knowledge o n the subject. But such opinion shall not be sufficient to
prove a m arriage in proceedings under the Indian Divorce A ct 1869, o r
in prosecutions under sections 494 to 49S o f the Indian Penal Code.^s
Certain conditions for proving relationship are also laid down when
the statem ent relates to th e existence o f any relationship the person
making th e statem ent had special means o f knowledge, and the statem ent
was made before the question in dispute was raised; when the statem ent
relates to the existence o f any relationship between persons deceased,
it m ust have been m ade before th e question in dispute was raised, in
any will or deed relating to the affairs o f the family to w hich any such
deceased person belonged, or in any fam ily pedigree, o r u p o n any
tom bstone, family p o rtrait or oth er thing on which such statem ents are
usually made.
52. See Gujarat v. Chotta L a i Patni, (1967) 1 S.C.R. 429.

53- Section 48.
53a. Section 32 (4).
54. Section 49.
55. Section 50.
56. Section 32 (5) and (6).
LAW OF EVIDENCE 277
The opinion th a t is contem plated is n o t m ere gossip or hearsay; it

means judgm ent o r belief, th a t is, a belief or a conviction resulting from
w hat one thinks on a particu lar question. In order to enable the co urt
to infer the opinion the conduct m ust be such as cannot be supposed to
have been willed w ithout th e inner existence o f th e opinion.®’
Whenever th e opinion o f any living person is relevant, the grounds
on which such opinion is based are also relevant.®®
'-<dharacter
The question when the character o f a person becomes relevant is
one of some nicety and has been provided by sections 52 to 55; sections
53 and 54 deal with the character o f the accused in crim inal cases while
the other tw o sections are concerned with civil cases. The character of
witnesses, as distinct from parties, to a proceeding has been separately
dealt w ith under sections 146(3) and 155(4). C haracter includes both
reputation and disposition; but, except as provided in section 54
evidence may be given only o f general reputation or disposition.
R eputation is n o t based upon personal knowledge of the person but is
the estim ation in which the public holds him. D isposition can, hoW'
ever, be spoken to only by those having personal knowledge. In civil
cases, the character o f any person concerned being such as to render
probable or im probable any conduct im puted to him is irrelevant except
in so fa r as such character appears from facts otherwise relevant.^® B ut
in civil cases the character o f any person such as to affect the am ount
o f damages which he ought to receive, is relevant.®" In criminal pro-
ceedings the fact th a t the accused is of a good character is relevant. “>■
B ut bad character of an accused is irrelevant, unless evidence has been
given th a t he has good character.®* B ut the last requirem ent would
n o t apply to cases in which the bad character o f a person is itself a fact
in issue or previous conviction is itself relevant as evidence of bad
character.
Witnesses to character may be cross-examined and re-examined.*®
T he evidence o f a previous conviction, as already noticed, could be re
levant.®^ Evidence as to previous conviction is m ade relevant by
57. DolgobindasFaricha v. N au m i Charan, (1959) Supp. 2 S.C .R . 814.

58. Section 51.
59. Section 52.
60. Section 55.
61. Section 53.
62. Section 54.
63. Section 140.
64. Section 14, Explaaatioa 2.
section 75 of the Indiau Penal Code in cases wJierc the accused is liable
to enhanced ptinishm ent.
T here is a distinction between the In d ian and the English law in

this regard; while character in India w ould include b o th general re
p u tatio n and general disposition, under the English law character
means only general reputation. This distinction was highlighted by i?, v.
iJoyvfow®® where the following answ er o f a prosecution witness was
held inadm issible where the accused was tried for indecent assault and
he had given evidence o f his good character :
I know nothing of the neighbourhood’s opinion, because I was

only a boy at school when I knew him , but my own opinion,
and the opinion of my b ro th ers, who were also pupils o f his,
is, th a t his character is th a t of a m an capable of the grossest
indecency and the m ost flagrant im m orality.
J Admissions
In any trial or proceeding no fact need be proved when th e parties

thereto or their agents agree to adm it it at th e hearing o r m uch before
the hearing they agree to adm it it in w riting o r in their h and, o r accord
ing to any ru le o f pleading in force a t the time, but the co u rt m ay in its
discretion require any fact ad m itted in an affidavit to be proved o th e r
wise than by such admission. There are also detailed provisions in the
A ct concerning w hat admissions could be proved as a fact.
A n ‘adm ission’, is a statem ent, oral or docum entary, which suggests

any inference as to any fact in issue or relevant fact, and w hich is m ade
by any o f th e persons, and u n d er circum stances which are specifically
m entioned in the A ct/’® Any adm ission in the pleadings o f an earlier
suit would be an admission under section 17; in other w ords, the A ct
makes no distinction between adm ission by a party in a pleading and
any other admission.®'^ The adm issions spoken o f in this context are
those either oral or w ritten b u t n o t any admission by conduct, which
will purely depend upon the term s o f section 8 and its explanations.
The statem ents m ade by a party to a proceeding or by an agent to

any such party, whom th e court regards, under the circum stances o f
the case, as expressly or im pliedly authorised by him to m ake them , are
65. (1865) 10 Cox CC 25.

66. Section 17.
67. Basant Singh v. Janki Singh, (1967) 1 S.C-R. I,
LAW OF EVIDENCE 279
admissions. Statem ents m ade by parties to suits, suing or sued in a

representative character, are n o t admissions, unless they were made
while the party m aking them held th a t character. T he statem ents m ust
be m ade by those who have any p roprietary or pecuniary interest in the
subject-m atter o f th e proceeding, and who make th e statem ent in their
character o f persons so interested, or m ust be of those from whom the
parties to the suit have derived their interest in the subject-m atter
o f the suit, provided they were made during the continuance
of the interest of the persons m aking th e statements,®® Statem ents
m ade by persons whose position o r liabihty it is necessary to prove as
against any party to the suit are admissions, if such statem ents would
be relevant as against such persons in relation to such position or liabi
lity in a suit brought by o r against them and if they are m ade
whilst the person making them , occupies such position or is
subject to such liability.®'’ Even statem ents made by persons to whom a
party to the suit has expressly referred for inform ation with reference
to a m atter in dispute are admissions."“
Admissions have to be clear before they can be relied upon; they

are not, however, conclusive proof o f the m atter adm itted.” ^ Admissions
can also be shown to have been wrongly made; but in the absence o f
such explanation would be conclusive.’^ I f the admission is an oral
statem ent which is denied by the person making it, it can be proved
through some one who heard the statem ent being made, W hen a person
gives evidence about some thing he heard it is direct evidence
o f what th a t person heard since it is a fact which is
capable of being heard. B ut evidence of such an admission is n o t
given to prove the fact adm itted, b u t only to show th at a person con
cerned m ade such an admission. This may have the indirect eifect o f
contradicting th a t witness and showing him to be an unreliable person
when he denies before the court the fact o f his having made such an
admission.
The following lim itations have been imposed upon admissions

which are relevant. They cannot be proved by o r on behalf o f the
person who makes them or by his representative-in-interest, except in the
following cases ;
68, Section 18.

69, Section 19.
70, Section 20,
71, Bharat Singh v, Bhagirathi, (1966) 1 S.C.R. 604.
72, Chandra K u m a r v. Chaudhri Narpat Singh and others,'!!,.^ . 29 All. 184.
An. adm ission may be proved by o r on behalf o f the person

m aking it
( 1) -when it is of such a n ature th a t if the person m aking it

were dead, it w ould be relevant as betw een th ird persons;’^“
( 2) when it consists o f a statem ent o f the existence o f any state

o f m ind o r body, relevant o r in issue, m ade at or about the tim e when
such state o f mind or body existed, and is accom panied by conduct
rendering its falsehood im probable;
(3) if it is relevant otherw ise th an as an adm ission.”
But oral admissions as to the contents o f a docum ent are n o t rele
v ant, unless and until the p a rty proposing to prove them shows th a t h e
is entitled to give secondary evidence of th e contents o f such docum ent
under the provisions o f the Act, or unless th e genuineness o f a docu
m ent, w hich is produced, is in question. T he English law on this p a rti
cu lar aspect is different because oral adm issions are receivable to prove
contents of a docum ent. T aylor has criticised the English rule as
unsound.’* In civil cases no adm ission is relevant, if it is m ade either
u p o n an express condition th a t evidence o f it is not to be given, o r in
circum stances from which th e co u rt can infer th a t th e parties agreed
th a t evidence o f it should n o t be given.’® But this w ould n o t exem pt
any barrister, pleader, attorney or vaki/ fro m giving evidence on any
m atter which he m ay be com pelled to give,’®
A
Confessions
Confessions by persons accused o f a crim inal offence are either

those w hich m ay be rejected as irrelevant’®" or those w hich the court
will take into account.’®* H ow a confession is different from an
adm ission was explained by th e Judicial Com m ittee o f the Privy Council
in Pakala Narayamswami v. Emperor.^’’ T he confusion in this regard
was said to be due to the definition o f confession in article 22 o f
S tephen’s Digest o f the Law o f Evidence as an admission m ade at any
tim e by a person charged with crim e stating o r suggesting the
inference th a t he com m itted th a t crime. I t was pointed out th a t this
72a. Section 32.

73. Section 21.
74. A Treatise on the Law o f Evidence, articles 411 and 412.
75. Section 22.
76. Section 126.
76a. Sections 24 to 26.
76b. Sections 27 to 30.
77. (1939) 661.A. 66.
LAW OF EVIDENCE 281
m eaning was n o t contained in the Evidence A ct and hence it would n o t

be consistent w ith th e n a tu ra l use o f language o f the A ct to construe
confession as a statem ent by an accused ‘suggesting the inference th a t
he com m itted’ th e crime. “N o statem ent th a t contains self-exculpatory
m atte r can am o u n t to a confession, if th e exculpatory statem ent is o f
some fact, which if true, would negative th e offence alleged to be confes
sed” . M oreover, a confession m ust either adm it, in term s, the offence,
o r at any ra te substantially all the facts which constitute th e
offence. An adm ission o f a gravely incrim inating fact, even a conclu
sively incrim inating fact, is n o t o f itself a confession, e.g., an admission
th at the accused is the ow ner and was in recent possession o f th e
knife or revolver which caused the death w ith no explanation o f any
other m an’s possession. This decision was followed by the Suprem e
C ourt in Palvinder Kaur v. The State o f Punjab’’^ which observed
as follows :
A confession m ust either adm it in term s th e offence, or at any

rate substantially all th e facts which constitute the offence.
An adm ission o f a gravely incrim inating fact, even a conclusive
ly incrim inating fact, is n o t o f itself a confession. A statem ent
th a t contains self-exculpatory m atter cannot am ount to a confes
sion, if th e exculpatory statem ent is o f some fact, which if true,
would negative the offence alleged to be confessed.
Thus while all confessions are admissions, the converse is not true.
Confessions, even like admissions, m ust be taken as a whole. W hile

an adm ission need not be voluntary to be relevant (though it m ay affect
its weight), a confession m ust be voluntary in o rd er to be relevant. A
relevant adm ission could be m ade by an agent o r even by a stranger
b u t a confession m ust be m ade by th e person himself.
To exclude a confession it is n o t necessary to prove th a t it was th e

result o f inducem ent, th re a t or prom ise ; any confession m ade by a n
accused person is irrelevant in criminal proceedings if the m aking o f
the confession appears to the court to have been caused by inducem ent,
th reat o r prom ise, having reference to th e charge against the accused
person, proceeding from a person in au th o rity and sufScient, in the
opinion o f th e court, to give the accused p erson grounds, w hich would
appear to h im reasonable, fo r supposing th a t by m aking it be would
gain any advantage o r avoid any evil o f a tem poral n atu re in reference
to the proceedings against him.''® It is for th e accused to create such
78. 1953 S.C .R . 94.

79. Section 24.
a doubt in the mind o f the court and not fo r the prosecution to prove
th a t it was voluntarily made. If such a confession is, however, made
after the impression caused by any such inducement, th reat or prom ise
has, ia th e opinion of the court, been full^ removed, it is relevant.®"
No confession made to a police ofBcer shall be proved against

a person accused of any offence.®^ Even after a century o f the
working of the Act this disability has not yet been done away with, o r
even whittled down to any extent.
The question has often arisen as to who is a “police officer” w ithin

the meaning o f section 25. Customs officers under th e Sea Custom s
Act, 1878 were held to be not police officers for the purposes o f the
section, because they only act judicially in order to prevent smuggling
o f goods by imposing penalties and they were themselves not charged
w ith the duty of taking action to prevent smuggling®®. In spite o f
certain differences hetweeii the Sea Custom s Act, 1878 and the Customs
Act, 1962 in th a t the officer acting under the later Act had all the powers
o f an officer in charge of a police station, b u t did not have the power to
file a charge-sheet or lodge a report before a m agistrate under section
173 of the Code of Criminal Procedure, the customs oiBcer under tJie
later Act was held n o t to be a police officer.®^ One test o f a “ police
officer” was stated to be the power to subm it a report under section
190(l)(b) of the Code of Criminal Procedure. Under the Custom s Act,
1962 the customs authorities could only -file a com plaint under section
190(l)(a) o f the Code like any other citizen, before a m agistrate and
could not submit a report to the m agistrate like any police officer in
charge o f a police station under section I90(l)(b).®‘‘ I f a confession is
not made in the presence o f a police officer b u t merely addressed to him
w ithout his being made aware o f such a confession contained in a letter
which was addressed to him, it would n o t come within the meaning o f
section 25 : for instance, where the accused had written a letter
addressed to the police and left it near the body of the person who was
m urdered by him with the intention o f the same being seen by a police
officer. Any admission made by a person who is not at the time o f
making it an accused could he considered. In Fadtfi v. State o f M adhya
80. Section 28.

81. Section 25.
82. S(cue o f P m 'a h v. Barkat jRajji, (1962) 3 S.C.R, 338.
83. Ramesh Chandra Mehta y.State o f West Bengal, A.I.R, 1970 S'C. 940-
84. Ulyas v. Collector o f Customs, Madras, Criminal Appeal N o- 45 of 1967.
85. 5/rai?flmv.,Smfe, (1966) Supp S.C.R. 265.
LAW OF EVIDENCE 283
Pradesh^^ the accused m ade a first inform ation report im plicating

certain persons as the m urderers o f his step-son. B ut on investigation
th e police charged th e accused w ith m urder. T he first inform ation
rep o rt given by th e accused contained adm ission by him o f certain facts
which h ad a bearing on th e question how and by whom the m urder was
com m itted and it was held adm issible under section 21 o f the Act.
No confession m ade by any person, while he is in th e custody o f a

police ofBcer, unless it is m ade in th e im m ediate presence o f a magis
trate , shall be proved as against such person.®^' B ut this section is
controlled by section 164 o f the Code o f Crim inal Procedure which
prescribes a valid procedure to ensure th a t th e confession which a
m agisirate records from a person accused o f an offence charging him
w ith the duty o f satisfying him self th a t th e confession is m ade volun
tarily b u t not owing to police pressure.*®
W hen any fact deposed to is discovered in consequence o f inform a

tio n received from a person accused of any offence, in the custody of a
police ofBcer, so m uch o f such inform ation, w hether it am ounts to a
confession or not, as relates distinctly to the fact thereby discovered,
may be proved.®” T hough the confession m ade by a person while in th e
custody o f a police officer is tainted, and is inadmissible for th at reason,
if the tru th o f th a t inform ation given by him is assured by the discovery
o f a fact, it m ay be presum ed to be untainted and is, therefore, provable
in so fa r as it distinctly relates to th e fact thereby discovered. T he
m eaning o f this provision which has been the subject o f many judicial
decisions has becom e furth er controlled by article 20 (3) o f the C onsti
tu tio n -which gives a constitutional protection to a person from making
any self-incrim inating statem ent. Article 20 (3) only provides th a t no
person accused o f any offence shall be com pelled to be a witness against
h im se lf; if th ere is com pulsion the confession becomes irrelevant fo r
that reason alone. In S(a(e o f Bombay v. K athi Kalu Oghad^'^ one o f
the items o f evidence against the person accused o f m u rd er was a state
m ent under section 27 leading to the discovery o f fire arm s used fo r
com m itting th e crime. T he Supreme C o u rt observed :
“ If the self-incrim inatory inform ation h as been given by an

accused p erson w ithout any threat, th a t will be adm issible in
86. Faddi v. State o f M adhya Pradesh, (1964) 6 S.C-R. 312.

87. Section 26-
88. Nazir Ahmad v. Emperor, 1936 Privy Couacil 253.
89. Section 27.
90. State o f Bombay v. Kathi Kalu Oghad (1962) 3 S.C .R . 10.
evidence and th a t will not be hit by the provisions o f Article 20

(3) o f the C onstitution fo r the reason that there has been no
com pulsion. It m ust, therefore, be held th at the provisions o f
Section 27 o f the Evidence Act are not w ithin the prohibition
aforesaid, unless com pulsion has been used in obtaining the
info rm atio n ” .
The constitutional attack on section 27 was negatived by the Suprem e

C ourt in S ta te o f U.P. v. Deoman Upadhyayy'-
“ If Section 21 renders inform ation adm issible on the ground

th a t the discovery o f a fact pursuant to a statem ent m ade by a
person in custody is a guarantee o f the tru th of the statem ent
made by him, and the Legislature has chosen to m ake on the
ground an exception to the rule prohibiting p ro o f o f such
statem ent, th at lule is n o t to be deemed u n constitu
tional......... The principle o f adm itting evidence o f statem ents
m ade by a person giving inform ation leading to the discovery
of facts which may be used in evidence against him is m ani
festly reasonable” .
The Judicial Com m ittee o f the Privy C ouncil, in P u lu k w i Kotayya

v. King Emperor^^ overruled the view held by a Full Bench decision
of the M adras High C o u rt in /n re Athappa Gomdan.'^^ The M adras
H igh C o u rt had held th a t the statem ent by an accused person who gave
inform ation to the police as to where he hid the knife would, o n the
knife being recovered, entitle the court to receive so m uch o f the
inform ation as distinctly led to the recovery including the statem ent
“ with which I stabbed” . The Judicial Com m ittee o f the Privy Council
stated :
“ It is fallacious to treat the fact ‘discovered’ w ithin the section

as equivalent to the object produced ; the fact discovered
embraces the place from which the object is produced and the
knowledge o f the accused as to this, and the inform ation given
must relate distinctly to this fact.”
91. State o f U.P. v- Deoman Upadhyay, A .I.R . 1960 S.C. 1125,

92. (1947) 74 Indian Appeals 65.
93. I.L .R . (1937) Madras 695. F or a fuller discussion vWe H.P. Administration v.
Om Prakash, A.I.R . 1972 S.C. 975. That information which does not
distinctly connect with the fact discovered or which merely explains
the material thing discovered is not admissible ; evidence pertaining to the
accused having taken the investigating ofHcer and panches and pointing out
the object discovered may be taken into account as evidence o f conduct under
section 8.
LAW OF EVIDENCE 285
Inform ation as to past user, or the past history, o f the object produced
is n o t related to its discovery in th e setting in which it is discovered.
Inform ation supplied by a person in custody th a t he w ould produce the
knife concealed in the ro o f o f his house did not lead to the discovery o f
a knife since knives were discovered many years ago.
The w ords “w ith w hich I stabbed A ” were held to be inadmissible

since they did n o t relate to th e discovery o f the knife in the house o f the
informer.
Statem ents
Statem ents m ade by persons in th e ordinary course o f business are

relevant. Exam ples o f th e same a re entries o r m em orandum made,
books kept in th e ordinary course o f business o r in the discharge o f
professional d u t y ; acknowledgments w ritten o r signed fo r receipt o f
money, goods, securities o r property o f any k in d ; docum ents used
in commerce, w ritten o r signed.®^ Also relevant are statem ents
against the pecuniary or proprietary interest o f the person m aking it, o r
when th e sam e would have exposed him to a crim inal prosecution or a
suit for damages;®® statem ents m ade ante litem motem m entioning
the opinion o f any such person, as to the existence o f any public right
o r custom or m atter o f public or general interest, o r the existence o f
which, if it existed, he would have been likely to be aw are statem ents
contained in any deed, will or other docum ent asserting or denying
'"anything inconsistent with its existence” o f any transaction by which
th e right or custom in question was created, claimed, modified, recogni
sed, asserted o r denied statem ents m ade by a n u m ber o f persons
expressing feelings o r im pressions on th eir p art relevant to the m atter
in q u e s t i o n . I n order to be relevant the above statem ents must be by
those who a re dead o r can n o t be found ; p ro o f o f death m ust be given
before the form al statem ents are adm itted and th ere m ust be p ro o f o f
diligent search fo r th a t person who is alleged to be n o t available fo r
being exam ined after diligent search for th a t person. T h e person who
formerly made the statem ent might have since becom e incapable o f
giving evidence, which disability should be established by com petent
medical testimony. If the presence o f that person m aking a statem ent
94. Section 32 (2); Section 34 ; Section 35.

95. Section 32 (3).
96. Section 32 (4).
97. Sections 32 (7) and 13 (a).
■98. Section 32 (8).
could Bot be procured, as for example, if he is in a foreign country, th e

statem ent o f such a person could also be adm itted as relevant.”®
The evidence o f witnesses recorded in a prior judicial proceeding o r

by any person authorised by law to take evidence is admissible in a
subsequent proceeding, or in a' later stage o f the same proceeding, fo r
establishing the tru th o f th e facts which are contained in th eir state
m ents when the witness is dead or cannot be found, o r is incapable o f
giving evidence, o r is kept o u t o f the way by the adverse party, o r i f
his presence cannot be obtained w ithout an am ount o f delay or expense,
which in the circum stances, the court may consider unreasonable
provided the following conditions are present :
(a) the proceeding was betw een the sam e parties o r their represen-
tatives-in-interest ;
(b) the adverse party h ad the right and o pportunity o f cross-
examining them ;
(c) the questions in issue are substantially the sam e in both th e
proceedings.’-
W hile p ro o f o f these conditions precedent to the adm issibility of

such evidence could be dispensed with in civil cases there should be
strict proof in criminal cases.^ T he C ode o f C rim inal Procedure
provides fo r th e recording o f evidence in the absence o f the accused
when he is absconding and th e same being used against him when the
accused is subsequently arrested. This is on the ground th a t if such
evidence is not recorded w hen the witnesses are available it m ay b e
lost subsequently when th e accused is arrested. This provision^ is a.
statutory exception to w hat th e Evidence A ct provides.
On the same footing certain statem ents m ade in special circum s

tances are also relevant. One instance would be entries in books o f
account if they are kept in the regular course of business and if they refer
to a m atter in issue before the court, but such statements shall n o t alone-
be sufficient evidence to charge any person w ith liability.'* The absence
of such an entry would not be relevant as such except facts w hich
support OT reb u t an inference.® Even if the person m aking an entry is
99. Section 32 (1).

1. Section 33.
2. Chainchal Singh y. King Emperor, (1945) 72 lA 270.
3. The Code o f Criminal Procedure, section 512,
4. Section 34.
5. Under section 9 or section II.
LAW OF EVIDENCE 287
n o t available as a witness for any of th e reasons already noticed® the

entry would be still relevant and m ay be suiEcient to charge any person
with liability. If, however, th e person m aking an entry is available as a
witness it will be relevant under section 34, but with this difference th a t
its suiBciency w ould depend on whether it is being used to charge a
person with liability fo r any other purpose. Certified copies of relevant
extracts under the Bankers’ Books Evidence A ct, 1891 could be received
in evidence to prove the entries therein, but in view o f section 34 the
person concerned could n o t not be saddled with liability for any sum
stated to have been advanced w ithout some independent evidence to
show th a t th e advance h a d been actually m ade.’ There is need^ fo r
som e other evidence apart from the presence or absence o f entries in the
books of account.
Entries m ade in public records in perform ance o f official duty or o f

a duty specially enjoined by law would become relevant if they state a
fact in issue or relevant fact. Instances o f such official registers would
be registers o f birth, deaths, marriages etc.® Judgm ents o f court,
however, do n o t fall under this provision for they are separately provided
for.^“ Also relevant are statem ents concerning facts in issue or relevant
facts, m ade in published maps and charts generally offered fo r public
sale or those m ade under th e authority o f the central o r state govern
m e n t , f a c t s o f a public nature stated in Acts and N otifications m ade
by an A ct o f Parliam ent in the U.K. or by a central o r state Act
appearing in an official gazette o r in any printed paper purporting to
be the London G azette or the governm ent gazette o f any dominion,
colony or possession o f H e r Majesty in E n g lan d /- statem ents o f law
contained in a book purporting to be printed or published under the
authority of th e governm ent o f the concerned country o r in a book
purporting to be a report of the ruling o f the cou rt o f such countries.^®
If the statem ent sought to be proved is p a rt o f a long statem ent or
conversion o r p art o f an isolated docum ent or is connected with the
series o f letters or papers, evidence may be given only o f th at part which
th e court considers is necessary for full understanding o f the nature
6. Supra note 99.

7. Chandradhar Goswami v. Gaulwii Bank (1967) 1 S.C.R. 898.
8. State o f Andhra Pradesh y. CheemahpatiGaneswara Rao. (1964) 3 S.C.C. 229^
9. Sections 34 and 35.
10. Section 43,44.
11. Section 36.
12. Section 37.
13. Section 38.
and effect of th e statem ent and the circum stances under which it was
made.^"*
P ro o f
P ro o f may be either o ral or docum entary. All facts, except th e
contents o f docum ents, may be proved by oral.evidence.^® I f it is oral
evidence it m ust in all cases be direct; if it refers to a fact w hich could
be seen it must be the evidence o f one who says he saw i t ;' iF it refers to
a fact which could be heard, it m ust be the evidence o f one w ho says he
heard i t ; if it refers to a fact w hich could be perceived by any o th er
sense or in any oth er m anner, it m ust be by one who says he perceived
it by that sense or in th at m anner ; if it refers to an opinion or to th e
grounds on which th a t opinion is held it m ust be the evidence o f a
person who holds th a t opinion on those grounds. T here is, however, a
clear distinction between the factum and tru th o f a statem ent. A
statem ent m ade to a witness by a person who is n o t him self called as
witness may or may n o t be hearsay. It is hearsay and inadm issible
when th e object o f the evidence is to establish w hat is contained in th e
sta te m e n t; it is n o t hearsay b u t would be adm issible w hen it is p ro p o sed
to establish n o t th e tru th o f th e statem ent, b u t th e fact it was m ade.
The contents o f docum ents m ay be proved either by prim ary o r
secondary evidence.^® Prim ary evidence m eans the docum ent itself,
which is produced for the inspection o f the court. W hen it is in several
p a rts each p art is prim ary evidence o f th e d o c u m e n t; w hen it is executed
in coun terp arts, each co u n terp art is executed by one or m ore o f the
parties, each counterpart is prim ary evidence as against’ the parties
executing it. W here a num b er o f docum ents are all m ade by one
uniform process (printing, lithography, p h otography etc.), each is
prim ary evidence o f the contents of th e rest ; b u t not w here they are all
copies o f the same.^
W hat is secondary evidence has been m entioned in detail.^® W hat

conditions have to be com plied with before letting in secondary evidence
have also been provided fo r.’^® Except in cases specifically provided f o r
docum ents m ust be proved by p rim ary evidence.®®
14. Section 39.

15. Section 59.
16. Section 61.
17. Section 62.
18. Section 63.
20. Section 64.
21. Section 67.
LAW OF EVIDENCE 289
I f a docum ent is alleged to be signed o r is w ritten in whole or in

p art by any person, the signature o r the handw riting o f so much o f the
docum ent as is alleged to be in th at p erson’s handw riting m ust be
proved to be in his handw riting ; in other w ords, there m ust be specific
evidence th a t th e signature o r handw riting p u rp o rting to be that o f the
executant is in th e handw riting o f the executant.®^
N o p articu lar num ber o f witnesses in any case will be required fo r

p ro o f o f fact “ .b u t generally, especially, in crim inal cases corroboration
is usually expected and there is some hesitancy in th e m atter acting on
the sole testim ony’ o f a witness except when the co u rt is assured about
the complete reliability o f such evidence.”^ A n accom plice is a com pe
tent witness b u t corrob o ratio n is usually expected. However, a convic
tion obtained on the basis o f the uncorroborated testim ony o f a witness
is n o t illegal.-'* D espite th e above rule o f law there is, by and large, a
rule o f prudence th a t the evidence o f an accomplice is unw orthy o f credit
unless he is co rro b o rated in m aterial p articu lars ; one accomplice,
however, cannot co rro b o rate an o th er accomplice.
Witnesses used as decoys o r to tra p a person to com m itting a crime

are not accomplices and th eir evidence could be acted upon if they are
reliable. In o th er words, th eir evidence cannot be rejected for w ant o f
corrobo ratio n .”® An approver to whom p ardon has been tendered
should pass th ro u g h the tw in tests o f reliability (common to all
witnesses} and th e need for corroboration.^®
Regarding the com petency of witnesses it is specifically provided®'^

th at all persons shall be com petent to testify unless they are prevented
from understanding the question p u t to them , or o f giving rational
answers to th e question, by reason o f tender years, extrem e old-age,
disease, w hether o f body or m ind or o f an y other cause o f the same
kind. T he O aths A ct requires that the judge m ust satisfy himself, before
adm inistering oath to a witness of tender years as to w hether he is in a
position to understand the significance o f an oath. I t has been pointed
o u t by th e Suprem e Court®® where the accused w as charged with the
22. SectioQ 134.>

23. Shankar Bhika Narsate v. State o f Maharashtra, 1972 A .I.R . S.C. 1171.
Evidence o f sole eye witness in a case o f murder wasacted upon when it was
corroborated by other circumstantial evidence.
24. Section 133.
25. Deelpat Singh v. State, 1969 A.I.R. S.C, 17.
26. Piara Singh v. Slate o f Punjab, 1969 A .I.R . S.C. 961.
11. Section 118.
28. Rameswar v. Slate o f Rajasthan, 1952 S.C .R . 377.
offence o f rape o f a girl o f eight years, om ission to adm inister o ath even
to an ad u lt bears only on the credibility o f the witness and n o t on his
competency. The O aths A ct does not deal w ith com petency o f a witness
b u t only subjects a person giving false evidence to a crim inal prosecu
tion. A child witness m ay require corroboration though it w ould not
be illegal to base a conviction o n the testim ony o f such child witness
alone. Before a child witness is exam ined the court usually puts a few
prelim inary questions to see its capacity o f understanding and knowledge
o f the dilference between tru th and falsehood. A w om an w ho is ravished
is a com petent witness. W hen the circum stances w arrant, the u n co rro
borated testim ony o f the prosecutrix in a rape case can be legally acted
upon. The religion of a witness is no b ar to com petency. T here is a
specific provision regarding the reception o f testim ony o f dum b witnesses
provided the m anner in which th e evidence given by th e dum b witness
is made intelligible by w riting o r signs m ade in open court.^*’
The o rd er an d m anner o f oral exam ination o f witnesses is to be

governed by the Codes o f Civil and C rim inal Procedures and in the
absence of any such law by th e discretion o f the court.®'’ The judge
has to decide about th e admissibility o f evidence.®^ The exam ination
o f a witness by the party w ho calls him is called his exam ination-in-
chief ; exam ination by th e adverse p arty is called his cross-exam ination ;
the exam ination, subsequent to the cross-exam ination, by th e party who
called him is called re-exam ination.“^ The exam ination and cross-
exam ination m ust relate to relevant facts and th e cross-exam ination need
n o t relate to the facts testified by the witness in exam ination in c h ie f ;
the re-exam ination will be directed to the explanation o f m atters
referred to in cross-exam ination and if a new m atter is by the perm is
sion o f the court introduced by re-exam ination th ere m ay be fu rth er
cross-exam ination upon th a t matter.^^ A person merely producing a
docum ent does n o t by the m ere fact o f producing it becom e a witness
w ho is liable to be cross-exam ined unless and until he is called as a
witness.®* A ny question suggesting the answ er which th e person putting
it wishes o r expects to receive, is a leading question,®® and m ust n o t, if
objected to by th e opposite party, be asked in exam ination-in-chief, or
in re-exam ination, th e cou rt having discretion in the m a tte r o f p u tting
29. Section 119.

30. Section 135.
31. Section 136.
32. Section 137.
33. Section 138.
34. Section 139.
35. Section 141.
LAW OF EVIDENCE 291
such Jeading questions as to m atters which are introductory, or undis-.

puted or have been sufHciently proved.®“ Leading questions, however,
may be asked in cross-examination.®^ Any witness may be asked during
the course o f exam ination as to w hether any grant o r o th er disposition
o f p ro p erty , as to which he is giving evidence, was n o t contained in a
docum ent. I f th is is so the adverse party m ay object to such evidence
being given u n til such docum ent is produced, o r until facts have been
proved which entitle secondary evidence being led o f its contents.®®
Any witness m ay be cross-exam ined with reference to his previous state
m ents in w riting ab o u t relevant m atter w ith o u t such w riting being
shown or proved ; th e attention o f the witness m ust be draw n to the
w riting if it is intended to contradict him by the writing.^® D uring
cross-exam ination questions which tend to test his veracity, to discover
his position in life or to shake bis credit by injuring his character,
although the answ er to such questions may either directly o r indirectly
crim inate him or expose him to a penalty or forfeiture, may be asked.*®
The court has a discretion in the m a tte r o f deciding w hat questions
shall be asked and when the witness m ay be compelled to answer ; no
question is to be asked w ith o u t reasonable grounds.*’ I f the court
thinks th a t any question is asked on unreasonable grounds such conduct
o f the lawyer may be reported to th e H igh C ourt or other authority to
which the law yer is subject in the pursuit o f his profession.'*^ T he court
m ay forbid indecent and scandalous questions*® and those which appear
to be intended to insult o r annoy, o r which, though pro p er in itself,
appear to the co u rt needlessly offensive in form.^^ I f a witness is asked
and has answ ered any question which is relevant to the enquiry only in
so far as it tends to shake his credit by injuring his character, no
evidence shall be given to co n trad ict him ; b u t if he answers falsely, he
m ay afterw ards be charged for giving false evidence.*® Though th e
expression concerning treatin g one’s witness as ‘h o stile’ is n o t used it is
laid down th a t th e court m ay in its discretion perm it the person who
calls the witness to put any question to him which m ight be put in
cross-exam ination by the adverse party.*® H ow the credit o f a witness
can be shaken is also stated in detail.*’ All questions tending to corro-
36. Section 142.

37. Section 143.
38. Section 144-
39. Section 145.
40. Section 146.
41. Section 148.
42. Section 149.
43. Section 151.
44. Section 152.
45. Section 152.
46. Section 154.
47. Section 155.
292 THE INDIAN LEGAL SYSTFM
b orate evidence o f a fact are admissible;^® in order to co rro b o ra te the

testim ony o f a witness, any form er statem ent m ade by him relating to
the sam e fact b u t about the tim e when the fact took place o r before
any au th o rity legally com petent to investigate th e fact may be proved.^s
I f any witness refreshes his mem ory by referring to the writing m ade by
him self concerning tlie transaction ab o u t which he is questioned by
either looking at the original w riting o r even a copy thereof,®" the
adverse party could also look into it for the purpose o f cross-exam ina
t i o n . A witness may also testify to facts m entioned in any docum ent
which he uses to refresh his m em ory, even if he has no recollection o f
facts to make sure th at the facts are correctly re co rd ed .^ ^ i f the party
refuses to produce a docum ent which he has had notice to produce, he
cannot later on use the docum ent as evidence w ithout the consent o f
the o th e r p a r t y . T h e judge m ay him self put questions o r o rd e r p ro
duction o f docum ents in order to discover o r obtain proper p ro o f o f
relevant facts. The judgm ent m ust be based upon facts declared to be
relevant and duly proved. The judge is n o t to compel any witness to
answer o r produce any docum ent which he would be entitled ro refuse
to answer or produce in the circum stances noticed eariier.®^ The
im proper rejection of evidence shall not be a ground by itself for
ordering a new trial or reversal o f any decision o f any case if it so
appears to the co u rt before such objection is raised that, independently
of the evidence objected to and adm itted, there is sufficient evidence to
justify the decision, o r th at, if the rejected evidence has been received, it
ought n o t to have varied the decision.*^®
The court may presum e the existence o f any fact which is JikeJy to
happen regard being had to the com m on course o f n atu ral events,
hum an conduct and public and private business in their relation to the
facts o f the particu lar case.^® The cou rt can call for p ro o f unless it is
prescribed by th e A ct th a t it “ m ay presum e” a fact and shall regard a
fact as proved when it “ shall presum e” a fact ; it shall n o t, however,
allow any evidence to disprove a fact where it has been declared th at
one fact is conclusive p ro o f of an other.
4S. Section 156.

49. Section 157.
50. Section 159.
51. Section 161.
52. Section 160.
53. Section 164.
54. Section 165.
55. Section 167.
56. Section 114.
57. Section 4.
LAW OF EVIDENCE 293
A ttestation
I f a docum ent is required by law to be attested it shall n o t be used

as evidence until one attesting witness is called if there is one alive and
subject to th e process o f the co u rt and capable o f giving evidence. But
in the case o f any o th e r docum ent which is required to be attested,
vi^hich is not a will, b u t has been registered u nder th e Indian Registra
tion Act, p ro o f o f execution o f the docum ent required by law to be
attested need n o t be given unless its execution by th e person by whom
it is pu rp o rted to be executed is purposely denied.®® If no such attesting
witness can be found it m ust be proved th a t the attestation o f one
attestin g witness is in his handw riting and th a t the signature o f the
person executing th e docum ent is in the handw riting o f th a t person.®®
T he admission b y a party to an attested docum ent o f its execution by
him self is sufficient p ro o f o f its execution as against him , though it be a
docum ent required by law to be a t t e s t e d . I f the attesting witness
denied or does n o t recollect its execution, it may be proved by other
evidence.®’ An attested docum ent n o t required by law to be attested
may be proved as if it was unattested.
Public and private documents
Public docum ents are those th a t have been specifically described.®®

A ll o th er docum ents are private.”* Who can certify copies of public
documents®® which can be tak en in p ro o f o f these documents®* and how
official docum ents can be proved®’ have been dealt with in detail.
Presum ptions o f genuineness can also be draw n in respect o f such duly
certified copies®^ and other oflScial documents.®*' There is a special
presum ption o f genuineness, valid execution, attestation etc. arising in
respect o f docum ents m ore th a n 30 years old com ing from proper
custody. This presum ption’®does not extend to coples.” ^
58. Section 68.

59. Section 69.
60. Section 70.
61. Section 71.
62. Sectioa 72.
63. Sectioa 74.
64. Section 75.
65. Section 76.
66. Section 77.
67. Section 7S.
69. Sections 80-85, 87 and 89.
70. Section 90.
71. Kalidindi Venkata Subbaraju v. Chiittalapati Subbaraju 1968 A .I.R . S.C. 947.
P roof of contents of documents and ambiguities in them
N orm ally the contents o f a docum ent are proved by the

original and the tru th o f the contents by oral evidence, but in the case o f
certain contracts, grants and oth er dispositions o f property specifically
dealt w ith’® the docunnent is evidence b o th o f contents and th e tru th o f
the contents. W hen the terms o f a contract, o r o f a grant, o r o f any
other disposition o f property has been reduced in the form o f a
docum ent, and in all cases in which any m atter is required by law to be
reduced to the form of a docum ent, no evidence shall be given in p ro o f
of the sam e except the docuinent itself, or secondary evidence o f its
contents. But the following are exceptions’^ th ereto :
(1) Any fact may be proved which would invalidate a docum ent o r
which w ould entitle any person to a decree relating thereto,
such as fraud, intim idation, illegality, w ant of due execution,
w ant o f capacity in any contracting p arty , want o r failure o f
consideration, o r m istake in fact or law.
(2) The existence o f any separate oral agreem ent as to any m atter
on which a docum ent is silent, b u t n o t inconsistent w ith the
term s regard being had, however, to the degree o f form ality o f
the docnm ent.
(3) The existence o f any separate oral agreem ent, constituting a
condition precedent to the attaching o f any obligation under
any such contract, grant or disposition o f property.
(4) The existence o f any subsequent oral agreement to rescind o r
m odify such contract, grant o r disposition o f property except
in cases where such contract is by law required to be in w riting
o r has been registered according to law pertaining to registra
tio n o f docum ents.
(5) Any usage o r custom b y which incidents n o t m entioned in any
contract are usually annexed to contracts o f th at description,
subject to the further condition th a t the annexing o f such
incident is not repugnant to or inconsistent with th e express
term s o f th e contract.
( 6) Any fact w hich shows in w hat m anner the language o f a
docum ent is related to existing facts’^.
72. Section 91.

73. Section 92.
74. Bai Hart Devi v. The Official Assignee o f Bombay, 1958 S.C.R. 1384.
LAW OF EVIDENCE 295
B o th the above provisions supplem ent each o ther; each w ould be

fru stra te d w ithout the aid o f th e other. T he fo rm er provision applies
to docum ents (b o th b ilateral an d unilateral) w hether they p u rp o rt to
affect rights o r n o t whereas th e latter is confined to bilateral docum ents
and to the parties to th e instrum ent or their representatives in in tere st—
it does n o t extend to strangers who are n o t b o und o r affected by the
term s o f th e agreem ent. Section 91, however, lays dow n a rule of
universal application; th ere is a specific provision’®which enables persons
who are not parties to a d ocum ent or their representatives in interest to
give evidence o f any fact tending to show a contem poraneous agreem ent
varying the term s o f th e docum ent.
I f there are am biguities they can be resolved only in the m anner

provided.’® P aten t am biguities cannot be rem oved by giving evidence
o f facts which show its tru e m eaning and supply its defects.’^’ W hen
the language is plain in itself and fits certain existing facts accurately
evidence m ay n o t be given to show th at it was n o t m eant to apply to
such facts.'^® B ut there is said to be a laten t am biguity when the
language is plain b u t is unm eaning w ith reference to certain existing
facts;'^® when th e facts are such th a t th e language used m ight have been
m eant to apply to any one and could n o t have been m eant to apply to
m ore th an one o f several persons o r things evidence may be given
concerning facts to show to w hich persons o r things it was intended to
a p p l y W h e n the language used applies p artly to one set o f existing
facts and partly to another set o f existing facts b u t the w hole o f it does
n o t apply correctly to either, evidence may be given to show to which o f
the tw o it was m eant to apply.®’- W hen there are illegible or not
com m only intelligible characters or obsolete, technical, local and
provincial expressions, abbreviations or w ords used in a peculiar sense
evidence may be given to explain them.°^ T he above provisions relating
to letting in of evidence are n o t to apply in th e m atter o f construction
o f wills to w hich th e provisions of th e In d ia n Succession A ct, 1865
applies.®®
75. Section 99.

76. Sections 93-98.
77. Section 93.
78. Section 94.
79. Section 95.
80 . Section 96.
S I, Section 97.
S2. Section 98.
53. Section 100. 1T h e A c t o flS 6 S has been replaced by the Indian Succession
Act, 1925.
Judicial notice
There are some facts o f which evidence need not be given if they
are relevant, and if the co u rt can take judicial notice o f them o r if
they are adm itted by the other side.®^ A p art from these two categories
certain facts may be taken judicial notice o f by the court and those
facts need not be proved.®® The reason for this is th a t they are
considered to be well-known —to o notorious and so well-known th a t it
would be an insult to intelhgence if evidence is offered to prove the
existence o f those facts. This provision®" m ay have to be widened
sufficiently to tak e in many m ore facts w hich may properly belong to
this category in the light o f the advancem ent o f hum an knowledge. T he
Suprem e C o u rt was o f the view th a t no judicial noticc could be taken
o f R attigan’s Digest concerning a poin t o f custom ary law in the P unjab
in spite o f the same having been compiled w ith great effort. In th a t
case the custom pleaded was th a t the sister was excluded from in h erit
ance by her b ro th e r’s collaterals. The alleged custom was required to
be proved®'^
'-4*rivikges and privileged communications
T here are also some facts o f which evidence cannot be given.®® N o

person who is or has been m arried shall be compelled to disclose any
com m unication m ade to him during m arriage by any person to w hom
he is or has been m arried ; such a person would not be perm itted to
disclose any such intention unless th e person who made it o r his repre
sentative in interest consents. T he exception to this would be suits
betw een m arried persons and proceedings in which one m arried person
is prosecuted fo r crime against the other.®® N o person shall be p erm it
ted to give any evidence derived from any unpubhshed official record
relating to affairs of state except w ith the perm ission of the head o f th e
departm ent concerned.’"’ No public officer shall be com pelled to
disclose com m unications m ade to him in official confidence when he
considers th a t the public interest would suffer by such disclosure.'*’'
There is a difference in application between these two prbvisions.
U nder the form er the court will have to decide the propriety o f th&
84. Section5(5.
85. Section 57.
86. Section 57.
87. Ujagar Singh v. M st. Jeo, (1959) Supp 2 S.C .R . 781.
88. Sections 122 to 127.
89. Section 122.
90. Section 123.
91. Section 124.
LAW OF EVIDENCE 297
claim w ithout looking a t the docum ent containing the subject m atter, o f
course with the help o f o th er evidence. I f th e co u rt disagrees with
the oflScer claim ing such privilege the co n ten ts o f th e docum ents are to
be disclosed ; it would n o t be looked into if th e co u rt agrees with the
claim o f privilege. I f th e privilege is claim ed under the la tte r provision
then th e cou rt m ay look into th e docum ent and decide upon the p ro
priety o f the claim . T h e docum ent w ould be re tu rn e d to the officer and
the claim o f privilege upheld w ithout its being disclosed to anybody if
th e co u rt upholds th e claim o f privilege. T h e m ere fact th a t privi-
ledge could be claim ed w ith reference to a docum ent w hich is sum m oned
by cou rt would n o t excuse th e person sum m oned from bringing the
docum ent to co u rt because it is only the co u rt which has to decide
upon th e validity o f any such claim o f privilege o r objection to its being
produced.*'"
T he Suprem e C o u rt considered"® a claim o f privilege m ade in the

public interest, which was put forw ard in respect o f the pro d u ctio n o f a
rep o rt o f the Public Service Com m ission ; the chief secretary o f a state
concerned filed an affidavit in su p p o rt o f the claim o f privilege. After
pointing out the kind o f affidavit th a t has to b e filed and by whom in
support o f a claim o f such privilege the Suprem e C o u rt observed th at a
court could hold an inquiry, by even subjecting the deponent o f the
affidavit to cross-exam ination, if need be, in support o f th e claim of
privilege as to w hether it relates to affairs of state. I f it does n o t relate
to affairs o f state the claim o f privilege should be rejected. I f it relates
to affairs of state th e last w ord o n this question should rem ain with the
head o f the departm ent. T he thinking of the Suprem e C o u rt to some
extent was influenced by the earlier decision o f th e H ouse o f Lords,®*
b u t there has been going back on this holding subsequently by the
H ouse o f Lords."® The last word was held to be with the co urt and
n o t w ith the m inister.
N o m agistrate o r police officer shall be com pelled to say w hence he

got any inform ation as to th e com mission o f any offence and no
revenue officer shall be com pelled to say whence he got any inform a
tion as to the com m ission o f any offence against the public revenue.’®
N o jud g e or m agistrate except upon special o rd er o f some court to
92. Section 162.

93. State o f Punjab v. Sodhi Sukhdeo Singh 1961 2 S.C .R . 371.
94. Duncan v. Cam mell L aird and Co. Ltd, 1942 A .C . 624.
95. Conway y. Rim m er, 1968 1 All E .R . 874.
96. Section 125.
w hich he is subordinate, shall be com pelled to answer any question as

to his conduct in court as such judge or m agistrate, or as to anything
w hich came to his knowledge in court, as such judge or m agistrate, b u t
h e can be exam ined as to other m atters w hich occurred in his presence
while he was so acting.” The Judicial Officers’ P rotection A ct gives
com plete protection to the judge in respect o f m atters decided by him
w ithin his jurisdiction and even in respect o f those acts done in good
faith even in cases falling outside his jurisdiction. This p ro tection is in
respect o f any action concerning anything done by him as judge or
m agistrate.
Professional com m unications betw een law yer and client are privi-
ledged unless the client expressly consents to the disclosure o f any such
com m unication made to the law yer fo r the purpose o f his p r o
fessional em p lo y m en t; this applies to the contents or conditions of any
docum ent with which the law yer becam e acquainted in the course o f
discharging his professional duties as well as to th e advice given by him .
T he exceptions, however, are th a t there is no privilege in respect o f any
com m unication made in furtherance o f any illegal purpose o r any fact
observed by the lawyer in the course o f his em ploym ent showing th a t
any crime or fraud has been com m itted since the com m encem ent o f his
professional em ploym ent. This obligation w ould continue even after
th e professional em ployment has ceased.®*® T he same provisions are
extended to interpreters, clerks o r servants o f the lawyer.”® The privi-
ledge is not w aived by the m ere fact o f the p a rty giving evidence at his
ow n instance or otherwise.^ N o one shall be compelled to disclose to
th e court any such coniidential com m unication unless the p a rty olfers
him self as a witness in which case he may be compelled to disclose any
such com m unication as may appear to the court necessary to be know n
in order to explain any evidence given by him.^ N o witness w ho is n o t
a party to a suit shall be com pelled to produce his title deeds to any
property, or any docum ent by virtue o f which he holds any p ro p erty as
pledgee or m ortgagee, or any docum ent the production o f w hich m ight
tend to crim inate him, unless he has agreed in w riting to produce them.'*
ISlo witness would be excused from answering any question as to

any m atter relevant to the m atter in issue in any civil or crim inal pro-
97. Section. 121.

98. Section 126.
99, Section 127.
1. Section 128.
2. Section 129.
3. Section 130.
LAW OF EVIDENCE 299
ceediug, on the ground th a t th e answer to such question will

incrim inate him o r m ay tend directly or indirectly to incrim inate
such witness, or th a t it will expose, o r tend directly or indirectly
to expose, such witness to a penalty or fo rfeitu re o f any kind ; no such
answer shall by itself subject him to any arrest o r prosecution, or
to be proved against him in any p articu lar proceeding except a prosecu
tion fo r giving false evidence in giving such false answer,*
E s to p p e l
W hen one person has by a declaration, act o r om ission intentionally

caused o r perm itted an o th er person to believe a thing to be tru e and to
ac t u p o n such belief, neither h e n o r his representative shall be allowed,
in any suit o r proceeding between him self and such person o r his repre
sentative, to deny th e tru th o f such thing.®
As pointed c u t by the Suprem e C o u rt any such estoppel to arise

th e person who claim s th e benefit o f estoppel m ust have acted to his
detrim ent on the basis o f such representation.®
I t may be noticed in this connection that res judicata as provided

by section I I o f th e Code o f Civil Procedure is similar in its effect to
estoppel. B ut the distinction betw een th e two consists in the fact th a t
while in the case o f estoppel th e person alone is estopped, in the case o f
res judicata the co u rt ceases to have jurisdiction. W aiver is a different
conception from estoppel in th a t th e form er is a m atter o f contract and
any later attem pt to enforce w hat has been given u p is discouraged.
Being a m atter o f contract the waiver itself m u st be for good and valid
consideration. B ut there is n o such requirem ent in the case of
estoppel. There can be estoppel by om ission, even by silence, when
there is a duty to s p e a k ; but in th e case o f waiver sim ilar silence would
n o t be enough fo r it requires a positive statem ent about waiving certain
rights. T here are various kinds o f e s to p p e l: estoppel by attestation
(any attestatio n w ith knowledge o f the contents o f the docum ent o r attes
tatio n in circum stances which m ay be sufBcient to draw a presum ption
o f such knowledge m ay am o u n t to estoppel), estoppel by contract,
estoppel of lan d lo rd an d tenant,'^ an acceptor o f a bill o f exchange n o t
being perm itted to deny th a t th e draw er h a d au thority to draw or
4. Section 132.
5. Section 115.
6. Dhiyan Singh v. Jugal Kishore 1952 S.C .K . 418 ;G y a rsi B a iv . Dhansukh Z al,
A .l.R . 1965 S.C . 1055.
7. Section 116.
300 THE INDIAN LEGAL SYSTRM
accept it.® W hen th e question is w liethet the person is landlord or

tenant or partn er or principal or agent and it is shown th a t he has been
acting as such, the burden of proving th at he does n o t stand o r he
ceases to stand in the speciired relationship, is on the person who
affirms it. Estoppel also can be on a constructive basis, fo r example,
registration being noticed o f a docum ent under the provisions o f ths
Transfer of Property Act. There can also be estoppel by election.
F or example, under section 180 o f the Indian Succession A ct where a
legatee obtains under a will a benelit to which he is n o t otherwise
entitled and accepts the same he is precluded from disputing the will.
Estoppel can also arise by m eans o f negligence : this could happen in
cases o f conduct, representation, or holding out of ostensible authority.
But there can be no estoppel against statute® or when the tru th is known
to the parties.
Burden of proof
Rules concerning burden o f p ro o f have been laid down.^“ W hoever

desires any court to give judgm ent as to any legal right or liability
dependent on the existence o f facts which he asserts, m ust prove th at
those facts exist,’-’- When a person is bound to prove the existence of
any fact the burden o f pro o f lies on th at person. The burden of p ro o f
in the sense o f introducing evidence is as follows ; the burden o f p ro o f
in a suit o r proceeding lies on the person who would fail if no
evidence a t all is given on either side.'® The burden o f p ro o f as to
any particular fact lies on the person who wishes the court to believe
in its existence, unless it is provided by any law that the p ro o f o f th a t
fact shall lie on th a t particular person.^® T he burden o f p ro o f con
cerning any fact necessary to be proved in order to enable any person
to give evidence of any other fact is on the person who wishes to give
such evidence.'* The burden of proving th a t a particular accused comes
within any exception, general or special, o f the Indian Penal Code is on
the accused.'® Any fact specially within the knowledge o f any person
has to be proved by th a t person.'®
8. Section 117.
9. Noakala Setharamaiah v. Kotaiak Naldu, A.I.R. 1970, S.C. 1354.
10. Sections 101-103,
11. Section 101.
12. Section 101.
13. Section 103.
14. Section 104.
15. Section 105.
16. Section 106.
LAW OF EVIDENCE 301
W hen a person is shown to be alive w ithin a period o f 30 years the

b u rd e n of proving th a t he is dead is on the person w ho affirms
i t / ’' provided th a t in the case o f a person w ho is n o t heard of
fo r seven years by those who w ould naturally have heard o f him if he
had been alive, the b urden o f p ro o f to show th a t he is alive is shifted on
to the person who affirms it.^®
There are also certain special rules concerning burden o f p ro o f in
addition to w hat was noticed earlier.” T h e question is w hen any
person is owner o f anything o f which he is shown to be in possession,
the burden o f proving th a t he is n o t the owner is on the perso n who
affirms th a t he is n o t the ow ner. 2“
W here there is a question as to the good faith o f a transaction
betw een two parties, one o f w hom stands to th e o th er in a p o sitio n of
active confidence, the burden o f proving the good faith o f th e transaction
is on the party who is in a position of active confidence.®^
'Conclusive proof
W hen any question o f filiation arises th e fact th a t any person was
b orn during the continuance o f a valid m arriage between his m other
an d any m an, o r w ithin 280 days after its dissolution, the m other
rem aining unm arried, shall be conclusive p ro o f th at he is the legitimate
son o f th at m an, unless it is show n th a t the p arties to the m arriage had
no access to each o th er when he could have been begotten.^®
Suggested Readings
1. The Indian Evideace Act, 1872.
2. C.D. Field, T/ie Law o f Evidence, 6 vols. (10th ed. 1970-73),
3. Journal o f the Indian Law Institute, Special Issue (1972) on the Indian Con
tract Act and the ladian Evidence Act.
4. V.B. Raju, Commeartries on the Indian Evidence Act, 1872, 2 vols. (3rd cd. 1970).
5. Ratanlal Ranchhoddas and Dhirajlal Thakore. Hindu Law o f Evidence.
6. Y-H. R ao and Y .R . Rao, Circumstanlia! and Presumptive Evidence.
7. V.P. Sarathi, The Elements o f the Law o f Evidence.
S. S.C. Sarkar, The Law o f Evidence.
9. A. Thakur, The Law o f Evidence.
10. J.G . Woodroffe and Amir All, r/i(> £an'o/£v(cfence, 4 vols, (12th ed. 1968 by
J.P. Singhal).
17. Section 107.

18. Section 108.
19. Section 109.
20. Section 110.
21. Section 111,
22. Section 112.

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Law of Evidence

D espite such rules o f evidence as were p revalent in Hindu^ and

A ct X o f 1835 o f the G overnor G eneral in Council applied to all

1. For a full discussion see Sir S. Varadachariar, Hindu Judicial System

strued as to render inadmissible in any cou rt any evidence w hich, b u t

The reform s which had been advocated in England by Lords

T here was piece-meal legislation subsequent to Act I I o f 1855 :

In spite o f these provisions judges o f this country com m ented’ on

T he Indian Law Commissioners prepared a d raft bill in 1868 which

Fitzjam es Stephen, to whose lot it fell, tw o years later, to introduce a

T here were subsequent amendments.® C ertain p a rts o f the Act

F o r instance, the rule th at evidence m ust be confined to points

8. Acts X V III of 1872, III o f 1887, H I o f 1899. X V III o f 1919, X X X I o f 1926,

way as to produce between them a result which no one can

There were two possible a p p ro ach es: one, on which th e A ct procee­

The tw o necessary functions o f a co u rt o f justice are to ascertain

Every judicial proceeding w hatever has for its purpose the

14. Proceedings o f the Legislative Committee dated 12.12.1868.

T he means b y w hich th e co u rt inform s itself o f th e existence of

T he law applied by courts to ascertained facts in order to fram e a

I t goes w ithout saying th a t the best rules o f evidence will n o t ensure

A law o f evidence properly constructed would be nothing

T he J yidence A ct governs the proceedings before court,s^^which

16. P. Taylor, A Treatise on the Law o f Evidence ( l u h ed. 1920).

person is conscious. One fact is relevant to the other w hen it is connect­

The scheme o f the Evidence Act is th a t no fact o th e r th a n those

found difficult in practice to be able to bring in evidence, intrinsically

W ith the above distinctive features in m ind an effort will be now

Facts which, though n o t in issue, are so connected w ith the facts in

There is a special provision concerning motive, prep aratio n and

Any com plaint is m ade relevant in the view th at no person is likely

Provision is made for letting in evidence o f facts showing the exis­

a t B with intention to kill him or merely accidentally, evidence may

Statem ents, w ritten or verbal, o f relevant facts m ade by a person

27. Section 14.

A dying declaration has to be com plete; if it is incom plete it could

I f the dying declaration is reliable th ere could be a conviction fo r

N o t only are such statem ents falling u n d er section 32(1) o f th e A ct

32. M oti Singh v. S tate o fU .P ., A .I.R . 1964 S.C.

Sardul Singh Caveeshar v. S ta te o f Maharashtra^^ in the following

( 1 ) there shall be prim a fa cie evidence affording a reasonable

( 3) anything said, done or w ritten by him should have been said,

As a result o f this in terpretation, despite the earlier rulings under

T he provisions concerning relevancy in tw o specific situations may

(a) any tran sactio n by w hich th e right o r custom in question was

(b) p articu lar instances in which th e right o r custom was claimed,

T he illustration to section 13 shows th a t deeds are transactions.

39. (1964) 2 s. C. R . 378.

In this context we may also notice th e provisions concerning

42. Section 40.

and section 403 o f th e Code o f C rim inal Procedure. T he judgm ent of a

O pinion of third parties

O pinions o f th ird parties have also been m ade relevant in certain

48- Section 44.

essential either th a t the handw riting expert be exam ined to prove or

W hen th e court has to form an opinion as to the existence o f any

When th e co u rt has to form an opinion as to the usages and tenets

52. See Gujarat v. Chotta L a i Patni, (1967) 1 S.C.R. 429.

There were two possible a p p ro ach es: one, on which th e A ct procee

person is conscious. One fact is relevant to the other w hen it is connect

Provision is made for letting in evidence o f facts showing the exis

W hen any fact deposed to is discovered in consequence o f inform a

On the same footing certain statem ents m ade in special circum s